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Wednesday, October 31, 2007

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Filed 10/30/07 P. v. Brown CA 4/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIAFOURTH APPELLATE DISTRICTDIVISION TWOTHE PEOPLE,Plaintiff and Respondent,v.ALAN LEONARD BROWN,Defendant and Appellant.E041149(Super.Ct.No. RIF125140)OPINIONAPPEAL from the Superior Court of Riverside County. Robert George Spitzer,Judge. Affirmed.Mark Alan Hart, under appointment by the Court of Appeal, for Defendant andAppellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Gary W. Schons, Senior Assistant Attorney General, and MaxineCutler, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.2A jury found defendant and appellant Alan Leonard Brown guilty of seconddegree murder (Pen. Code, § 187, subd. (a),1 count 1), driving under the influencecausing bodily injury (Veh. Code, § 23153, subd. (a), count 2) and driving with a bloodalcohol content of .08 percent or greater causing bodily injury. (Veh. Code, § 23153,subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with asuspended license. (Veh. Code, § 14601.2, subd. (a), count 4.) The jury also found truethe enhancement allegations on counts 2 and 3 that defendant personally inflicted greatbodily injury on two victims. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trialcourt sentenced defendant to a total term in state prison of 23 years, including 15 years tolife on count 1, the consecutive term of two years on count 2, plus a consecutive threeyears for each of the two great bodily injury enhancements. The court imposed aconcurrent term of six months on count 4, and stayed the sentence and enhancements oncount 3.On appeal, defendant contends that: 1) the trial court erred in denying his motionin limine to suppress statements he made to a police officer at the scene of the accident;and 2) his Sixth Amendment right to a jury trial, as defined in Blakely v. Washington(2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]1 All further statutory references will be to the Penal Code, unless otherwisenoted.3(Cunningham), was violated when the trial court imposed consecutive sentences. Wedisagree and affirm.FACTUAL BACKGROUNDAt around 2:00 a.m. on July 21, 2005, Christian Esquivel was driving his mother’scar with two passengers, in Corona. He stopped at a flashing red light at the intersectionof Sixth Street and Smith, looked to his left, and saw a red car coming. He could notdetermine its speed. Esquivel proceeded into the intersection. The red car, which hadbeen spotted by police officers speeding just moments before, did not slow down or stop.Officer Robert Paul, who had responded to a call for assistance regarding the speedingcar, drove to the intersection of Sixth and Smith in time to observe a collision betweenthe red car and Esquivel’s car. Officer Paul estimated that the red car was goingapproximately 100 miles per hour. Esquivel’s car spun around, stopped at the curb, andimmediately caught on fire. One of Esquivel’s passengers was ejected from the car anddied as a result of blunt force head trauma. Esquivel and the other passenger were pulledout of and away from the burning car and were hospitalized for several days.After hearing about the collision, Officer Jason Morris drove to the scene of theaccident. He saw other officers tending to the burning car at the intersection of Sixth andSmith so he drove further west on Sixth Street, where he saw the red car, which wasturned over on its roof.2 He approached the car and noticed one male occupant in it—defendant. As Officer Morris dragged defendant out of the car, defendant cried out in2 The record refers to the red car as burgundy and maroon, as well.4pain. A large can of beer fell out of the car with him. Officer Morris dragged defendant10 to 15 feet away from the car and waited with him for paramedics to arrive. At thatpoint in time, he did not arrest defendant or handcuff him because he had no reason to doso. While Officer Morris was waiting with defendant, he asked him some questionsabout the collision and tape recorded the conversation with a digital tape recorder.3Officer Morris asked defendant, “What happened, dude?” Defendant said he wentthrough a stop sign. Officer Morris asked him if he had been drinking, and then askedhow much he had been drinking. Defendant replied, “Not enough.” Officer Morrisasked him a few other brief questions, including where he was in pain, which way he wasdriving, what and where he was drinking, if he was wearing his seatbelt, and how fast hewas going. When the paramedics arrived, they placed defendant in an ambulance anddrove him to the hospital, unaccompanied by any police officer. Officer Morris drove tothe hospital in his police car.Police Investigator Bryan Wilson, a traffic investigator and accidentreconstructionist, arrived at the scene of the collision at 2:30 a.m. From his investigation,he concluded that defendant was driving between 93 and 113 miles per hour, whileEsquivel was driving between 16 and 21 miles per hour.Investigator Wilson interviewed defendant at the hospital at 9:30 a.m., later thatmorning. Defendant told Investigator Wilson that he had previously been arrested for3 The jury was given a transcript of the recording, and the recording was playedfor the jury.5driving under the influence (DUI) twice, once causing a collision. He told InvestigatorWilson that his license was currently suspended because he was supposed to have anignition interlock device4 installed in his car, but he never did. His license had beensuspended for the past 12 years. He also stated that he completed a DUI program 15years ago, but failed to complete the program the second time. Defendant admitted thatthe current collision was his fault. He said he was speeding down the street to catch thegreen lights. In addition, he told Investigator Wilson that he was taking Prozac andTrazodone. Investigator Wilson subsequently obtained defendant’s prescription bottlesfrom his mother. Both bottles contained warning labels stating that the drugs could causedrowsiness, which could be intensified by alcohol.A blood sample was taken from defendant at 3:05 a.m., and his blood alcohol levelwas .19. The test also revealed Prozac and Trazodone in his blood.ANALYSISI. The Trial Court Properly Denied Defendant’s Motion in Limine to Suppress HisStatements to Officer MorrisDefendant argues that the evidence of his statements to Officer Morris at the sceneof the collision was improperly admitted in violation of his rights under Miranda.5 Theissue is whether defendant was “‘taken into custody or otherwise deprived of his freedomof action in any significant way.’ [Citation.]” (People v. Forster (1994) 29 Cal.App.4th4 Defendant referred to it as a “breath machine.”5 Miranda v. Arizona (1966) 384 U.S. 436.61746, 1753 (Forster).) We conclude that he was not; therefore, the Miranda safeguardsdid not apply.A. Procedural BackgroundA preliminary hearing was held on December 2, 2005. Officer Morris, whosesubsequent trial testimony is presented above in the statement of facts, testified at thepreliminary hearing that he asked defendant questions about what happened after thecollision. When the prosecutor asked Officer Morris what defendant told him, defendantobjected, based on Miranda. After initially overruling the objection, the court sustainedit. A lengthy discussion then ensued about whether defendant was free to leave and ifMiranda applied. During the discussion, the court asked Officer Morris if he would haveallowed defendant to walk away while he was questioning him. Officer Morris replied,“Absolutely not, sir, because I have a duty to investigate the traffic accident.” Theprosecutor requested the court to admit the evidence of defendant’s statements to OfficerMorris, subject to a motion to strike at the end of the hearing. The court agreed to do so.It then continued the preliminary hearing to December 16, 2005.At the continued preliminary hearing, Officer Morris testified that defendant wasnot in custody at the time he was asking questions about the collision. Officer Morrisasked defendant how fast he was going, and if he had had any alcohol to drink. Inresponse to the latter question, defendant said, “‘Not enough.’” At that point, OfficerMorris said he ceased questioning defendant, and the paramedics took defendant to thehospital.7At the close of evidence at the preliminary hearing, the court asked the parties toaddress defendant’s Miranda objection to Officer Morris’s testimony regardingdefendant’s statements made at the scene of the collision and at the hospital. The courtthen denied defendant’s request to suppress the statements, citing Berkemer v. McCarty(1984) 468 U.S. 420 (Berkemer) and other cases.Subsequently, defendant filed a motion in limine to suppress his statements madeto Officer Morris at the scene of the collision. He claimed that he was in custody andshould have been given Miranda warnings before being questioned, considering thecircumstances that: 1) he caused a major traffic accident and the police were on thescene; 2) Officer Morris testified at the preliminary hearing that he was not allowed toleave, pending investigation of the collision; and 3) Officer Morris knew that defendantwas not going to get up and leave, given his injuries. The court concluded that theinterview that occurred at the scene of the collision did not constitute a custodialinterrogation, within the meaning of Miranda. The court specifically noted that thecontact between Officer Morris and defendant was relatively brief, and that the officersimply presented “an open-ended question, ‘What happened?’ and a few follow-upquestions.”B. Standard of ReviewOn appeal, “[w]e apply a deferential substantial evidence standard to the trialcourt’s factual findings, but independently determine whether the interrogation wascustodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)8C. Defendant Was Not in Custody“It is settled that the safeguards prescribed by Miranda become applicable as soonas a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’[Citation.]” (Berkemer, supra, 468 U.S. at p. 440.) “Custody determinations are resolvedby an objective standard: Would a reasonable person interpret the restraints used by thepolice as tantamount to a formal arrest? [Citations.] The totality of the circumstancessurrounding an incident must be considered as a whole. [Citation.]” (Pilster, supra, 138Cal.App.4th at p. 1403, fn. omitted.) Objective indicia of custody for Miranda purposesinclude: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, thelength of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) thedemeanor of the officer, including the nature of the questioning.” (Forster, supra, 29Cal.App.4th at p. 1753.)In Berkemer, the United States Supreme Court concluded that an officer’s roadsidequestioning of a motorist detained pursuant to a routine traffic stop did not constitutecustodial interrogation for Miranda purposes. (Berkemer, supra, 468 U.S. at pp. 435-440.) The Court noted that the “detention of a motorist pursuant to a traffic stop ispresumptively temporary and brief.” (Id. at p. 437.) The court then contrasted astationhouse interrogation, “which frequently is prolonged, and in which the detaineeoften is aware that questioning will continue until he provides his interrogators theanswers they seek.” (Id. at pp. 437-438.)Here, defendant has failed to demonstrate that he was subjected to restraintscomparable to those associated with a formal arrest. When Officer Morris questioned9defendant, he had not been formally arrested. The length of the questioning was verybrief, as noted by the court. Defendant was questioned at the scene of the collision, not apolice station. This public atmosphere, in which passersby could view the interaction,was “substantially less ‘police dominated’ than that surrounding the kinds ofinterrogation at issue in Miranda itself . . . .” (Berkemer, supra, 468 U.S. at pp. 438-439.) Officer Morris was the only officer questioning defendant, and the questions wereopen-ended, non-accusatory, and investigative. The officer simply asked questions to aidhis investigation of the collision. (i.e., What happened? Were you drinking? How fastwere you going? Were you wearing a seatbelt?) Even after questioning defendant,Officer Morris did not place him under arrest. He waited with him for the paramedics toarrive. Defendant then went to the hospital in the ambulance, unaccompanied by anypolice officer.Although Officer Morris told the court he would not have allowed defendant towalk away while he was questioning him because he had a duty to investigate theaccident, his intention was not communicated to defendant. “A policeman’sunarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at aparticular time; the only relevant inquiry is how a reasonable man in the suspect’sposition would have understood his situation.” (Berkemer, supra, 468 U.S. at pp. 442, fn.omitted.)Considering the totality of the circumstances surrounding the questioning ofdefendant, we conclude he was not in custody and was thus not entitled to Mirandawarnings.10D. Any Error Was HarmlessDefendant argues that the court’s admission of his comment, “Not enough” (hisresponse when Officer Morris asked him how much he had to drink), was prejudicialerror, since the prosecutor allegedly used that statement to prove implied malice. Anyerror in admitting that statement was harmless beyond a reasonable doubt. (People v.Peracchi (2001) 86 Cal.App.4th 353, 363.)Defendant correctly points out that the prosecution used defendant’s statement,“Not enough,” in his closing argument. The prosecutor argued that, after defendant hadbeen drinking for four hours, his attitude was that he had not had enough, and that remarksaid a lot about his disregard for the lives and safety of others. However, there was anabundance of other evidence that showed defendant’s conscious disregard for life.Defendant admitted during his interview with Investigator Wilson that he had twoprevious arrests for driving under the influence—one of which involved a collision.Defendant was required to, and did, complete a DUI program, as a result. This fact aloneshowed that defendant had knowledge of the dangers of driving under the influence. Healso admitted that he failed to complete the DUI program the second time he wassupposed to take it. At the time of the current collision, defendant was driving with alicense that had been suspended for 12 years. He admitted that he was supposed to installan ignition interlock device, but never did. Moreover, defendant took Prozac andTrazodone that day, and, despite the warnings against mixing drugs with alcohol, heconsumed so much alcohol that his blood alcohol level was .19 percent. He then drovehis car between 93 and 113 miles per hour. In light of this evidence, which clearly11displays defendant’s implied malice, any error in admitting his statement was harmlessbeyond a reasonable doubt.II. The Trial Court Properly Imposed Consecutive SentencesDefendant claims that the trial court’s imposition of the sentence in count 1consecutive to the sentence in count 2, based on facts that were not found true beyond areasonable doubt by the jury violated his constitutional rights to a jury trial and dueprocess, under Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. Heargues that applying Blakely and Apprendi to consecutive sentencing is consistent withthe reasoning of Cunningham, supra. We disagree.Cunningham did not address the constitutionality of California’s DeterminateSentencing Law (DSL) pertaining to a trial court’s decision to impose concurrent orconsecutive sentences. It thus did not overrule the California Supreme Court’s decisionin People v. Black (2005) 35 Cal.4th 1238 (Black) (overruled on other grounds inCunningham, supra) that “Blakely’s underlying rationale is inapplicable to a trial court’sdecision whether to require that sentences on two or more offenses be servedconsecutively or concurrently.” (Id. at p. 1262.) We are bound by Black’s holding thatthe reason(s) for imposing a consecutive term need not be determined by the jury.(Black, supra, at pp. 1263-1264; see Auto Equity Sales, Inc. v. Superior Court (1962) 57Cal. 2d 450, 455-456.)DISPOSITIONThe judgment is affirmed.12/s/ HOLLENHORSTActing P.J.We concur:/s/ McKINSTERJ./s/ RICHLIJ.